Crossing the line - Macleans.ca
 

Crossing the line

Should border guards really have the right to search our laptops?


 

Crossing the lineEvery day, thousands of Canadians who have been outside the country return, crossing the border back into Canada. Many carry laptop computers. Just about anything might be stored on them—emails, financial information, tax returns, health records, trade secrets, a history of Web searches, pornography. A look inside by a border official—and publicity about what is found—could ruin careers, marriages, lives.

But the contents of our personal laptops aren’t safe at the border. Agents of the Canada Border Services Agency have almost untrammelled authority to search your computer. They have more power than ordinary police officers. They don’t need a search warrant. They don’t need reasonable belief that you are committing a crime. A vague suspicion that you may be up to no good is enough, and maybe even that is not required. Constitutional protection against unreasonable search and seizure (found in Section 8 of the Charter of Rights and Freedoms) won’t help you. You’re pretty much defenceless.

This state of affairs was recently brought home in a dramatic way. According to a police search warrant, on Sept. 15, Raymond Lahey, the Catholic bishop of Antigonish, arrived at Ottawa airport on a flight from Britain, travelling alone. He went to a Canada Border Service counter for the usual screening. The agent, Venessa Fairey, looked at his passport. He’d been in Indonesia, Malaysia, and Thailand, known sources of child pornography. Fairey asked Lahey if he had a laptop. Lahey hesitated for a moment, avoiding eye contact. Then he said yes, his voice cracking. Fairey flagged him for secondary inspection.

Lahey was met by Border Services agent Caroline Barnett. Barnett searched his laptop. She found three images that she thought could be considered child pornography. She called Ottawa police. Two detectives arrived, questioned Lahey, and reviewed the images. They seized his computer, then let him go. After a review of the hard drive, the police decided Lahey had imported child pornography. Only then, on Sept. 23, did they apply for a search warrant “to further search the computer and hard drive.” It is alleged more child pornography was found, and Lahey was charged under the Criminal Code.

In Lahey’s case there were grounds for suspicion, however tenuous—a male travelling alone, evasive manner (so it was said). None of this applied in the case of William Leask, a long-distance truck driver. In September 2006, Leask crossed into Canada at Buffalo, N.Y. His load of glass jars was targeted for a routine secondary inspection. The agent stumbled across child pornography on Leask’s laptop. Leask was arrested.

At his trial, Leask’s lawyer argued a person has the very highest expectations of privacy when it comes to his computer. He argued that a search of a computer’s contents is illegal unless based on reasonable suspicion, and that Leask’s Charter right not to be subjected to unreasonable search and seizure had been violated. But the judge disagreed. He said, “the suggestion that searching a computer being imported into the country would cause fear and apprehension in a reasonable person is, to my mind, incredible and untenable . . . I see no intrinsic difference between the effects of the computer search at issue here and the intrusiveness or the embarrassment attendant upon a search of a wallet or purse.”

Both cases involved child pornography, deeply abhorrent to most of us. But the same law applies to everyone who crosses the border. In another recent Ontario case, R. v. Petr Bares, the judge said, “in the circumstances of a border search . . . there is a significantly reduced expectation of privacy in the content of a computer disc.” Earlier cases dealing with drug smuggling, including cases in the Supreme Court, have held that border searches, because of the demands of national self-protection, do not have to meet usual reasonableness tests for search and seizure, although they do require reasonable suspicion.

Those who have something significant to conceal often have the benefit of savvy advice. A blue-chip law firm advises executives with sensitive corporate information to travel with a “clean laptop,” to “connect remotely to the company’s server in order to access any required electronic documents,” and not save new documents to local drives on the clean laptops. A gay-and-lesbian website says “most tech-savvy gay men will at least encrypt their porn” (border agents are able in most case to decrypt). But most ordinary Canadians don’t have the benefit of such advice. We don’t realize how vulnerable we are in a legal system that permits random searches.

Just about everybody supports vigorous “national self-protection” against child pornography and other evils. But how far should we go? Is it okay, at the border, to abandon full constitutional protection against unreasonable search and seizure? I don’t think so. Freedom has its costs.


 

Crossing the line

  1. I would add that the same principle applies to Blackberrys (and I don't mean importing fruits and vegetables). In the case of email, one is also giving customs access to emails FROM others (and thereby exposing their confidential information as well).

    “Freedom has its costs”. There is always a tension between “Freedom” and “Security”. It is unfortunate that our legal system is evolving to the point where the “ends” always seems to justify the “means” – in my opinion this is wrong. An expectation of privacy is a vitally important societal value. (The United States Supreme Court relied on this value to justify its decision in the infamous Roe v. Wade case).

    Freedom has a cost. The cost is that there will always be people who do not share your values and perspectives. Let's remain free – the content of blackberrys and laptops should remain private.

    • Don't smuggle bag things and you have nothing to worry about

  2. Whose freedom?
    Child protection has its costs, simple choice.

  3. Many of these laws were drawn up before the advent of computers and definitely before the idea of being able to store pictures, music, and documents digitally. The laws need to be revamped in a big way in order to be able to protect our privacy but allowing border officials to be able to search out illegal items such as child pornography. I don't know how you would do that. Is music or pictures actually music or pictures until it is "decypted" into some usable form? Depending on the program that you use to decrypt something (as the program decides how to rearrange digital information into a usable form) is it illegal? Maybe we need an encryption that does everything generically and only when you feed it a certain key or password will it form the original item. Therefore some with the wrong key will get something entirely different using the same decrypted information. I don't know just thinking off the top of my head here. I am sure if everyone with a laptop/phone was searched at the border, they would find something "illegal" (downloaded movies, music, copyrighted photos etc). We would all fight the searches and tie up the courts for many years to come.

    A question though, with all the examples given in the story, they were ALL CAUGHT with child porn, so were the border officials so wrong?

  4. There shoudl be zero expectation of privacy at the border. This is what assists with keeping the border safe. 90% of the Child Pornography is discovered on laptops and if you think the officers needs a warrant to look on a computer at the border you are just as bad as the person importing the contraband. If they are catching the bad people what is wrong with looking on a laptop. If you think officers are looking on your laptop for personal information you are hugely mistaken. They don't have time to do that. They don't even have time to look at all the pictures on the laptop. First they do a quick scan and if they have indicators to go deeper they do. Its called developing reasonable grounds. Officers don't look in every single space in a car but if they have the indicators of smuggling they sure do.The officers don't care if you have evidence of having an affair on your laptop etc. They have all taken an oath of ethics and they are not looking for your personal information that has nothing to do with smuggling.

    • >They have all taken an oath of ethics

      Oaths of ethics??? By that standard, all immigrants who take on canadian citizenship don't not be searched. It's safe because they all took their citizenship oath which demands that they faithfully observe the laws of Canada.

      And people always respect the oaths they take!! Gimme a break!

  5. No one cares about your personal information if it has nothing to do with smuggling. Customs Act and the zero expectation of privacy is there for your protection so if youdon't like it either don't cross the border or leave your laptop at home. Don't smuggle and you should have nothing to worry about.

  6. With the news of these arrests, in this digital age, where one uploads and downloads through wires, true criminals will for sure be dumb enough to leave pictures on their laptops when they land at a Canadian airport.

    It's a sad fact that we have these two child pornography cases heralded as a reason to trump basic privacy and have the rest of us go through hours of lineups, humiliating searches and have taxpayers foot the bill for it. I have travelled a lot and Canadian airports stand out as the worst customs offices to be greeted by. It is the ONLY country that has searched my bags and computer at an airport. All searches turned out to be a waste of time and money…and a big power trip for the custom's official.

    If people have no problem with this they should start petitioning for a soviet style police that can come to your house and look through your things…You know,,, for the sake of the children.

    • Customs officers are not greeting agents. they are law enforcement. The days of being facilitative are over. They are enforcement officers.

        • The Dziekanski case was the RCMP btw.

      • Yeah and there methods prove that they do a wonderful job

        see

        http://www.cbc.ca/toronto/features/staring/stoffe
        http://www.cbc.ca/canada/ottawa/story/2008/03/05/

        And the Dziekanski case just goes to show how good they make Canada look to the World

        http://www.embassymag.ca/page/view/dziekanski-11-

        Also, the searches conducted on the computer by the customs official are kind of a joke. Going into a Windows search Window and checking "all Pictures" is kind of lame if this passes as a rigorous test.

        Please these customs officials make Canadians look like fools…

        • once again, the Dziekanski case was the RCMP not CBSA

          • Except that it all happened on their grounds at the Vancouver Airport. It at the very least showed the incompetence of the Canadian Border Service Agency. Don't suggest they had nothing to do with this mess because they did. They have a lot to answer too. Do we really want to give unlimited powers to an agency who's shown so much incompetence in this case.

          • The officers have a huge number of people to process and if you think they can intercept all the contrand than you should go work there. And remmeber to smile and welcome everybody into Canada.

          • I would never take on a job that requires me to go through an innocent citizen's packed underwear. Some people have a conscience.

            The numbers just go to show that the system the way it is setup in Canada, no matter who administers it, is ineffective, useless even, an incredible invasion of privacy and, expensive. It's an illusion of a safeguard against child pornography because most criminals have the presence of mind to upload and download, not physically carry through a border. They also have sophisticated easy to use technology to hide their material so that nobody, the very least a custom's officer will be able to detect it.

            They know this in Europe where a walk through passport control is swift and where they very rarely (in my case never) look into your bags and computer. Even the U.S does not go as far as Canada in this regard.

          • If you are not willing to take the job on than I would suggest you have no comment to make. And how do we know if the person is innocent by looking at them. Please describe what a criminal looks like. If most people only download and not carry it across the border, why not catch the dumb ones while we can? What do you have against arresting people in possessoin of child pornography? are you friends with them or are you one? Obviously you have not crossed into the USA.

          • >If you are not willing to take the job on than I would suggest you have no comment to make.

            As a Canadian citizen, I think I can comment on what is an outrageous invasion of privacy. My taxes do fund the salaries of these officers. I think voicing an opinion is what keeps the democracy alive. And perhaps one day we will do away with this ridiculous process at the border.

            >Please describe what a criminal looks like.

            I don't think you get it. If it's o.k. to be searched at the border in order to combat child pornography, why stop there? Why not start giving the state the absolute right to go into anybody's house at random and search their computer. Anybody can be a criminal! Why actually not start searching custom's officers themselves when they go do their jobs? You never know!

            >If most people only download and not carry it across the border, why not catch the dumb ones >while we can?
            The price that the rest of us have to pay to catch the dumb ones is a little much. That's why!

            >What do you have against arresting people in possessoin of child pornography? are you >friends with them or are you one?
            I am not against arresting people in possession of child pornography. I am against having the contents of my laptop searched at random just because the custom's officer feels like it. The distinction is crucial. This, as far as I know, does not make me a friend of a child pornographer.

            >Obviously you have not crossed into the USA.
            I cross the border into the U.S. regularly. I am amazed at how professional the custom's officer there have become. Obviously people complained after 9/11. They have never searched my bags or my laptop even if they have the right to. In contrast, it seems to me at least, that the custom's officer in Canada, have really no clue… Really!

          • If you were searched you would know that the officers are very discreet and they don't search things with a fine toothed comb unless they have indicators to go further. I hav ebeen searched and they have been goodl.

          • That's wrong! I can speak from experience. While I was waiting for the custom's inspector to come, a guy in the queue next to me was already in the process. I saw pretty much everything.

            Waste of time, money and invasion of privacy. No wonder the gun smuggling business is booming and no wonder cigarette smuggling business is booming.

            And here's to the oath of ethics you were heralding a while ago
            http://www.cbc.ca/canada/montreal/story/2009/09/3

  7. Great topic you have here. I was wondering what would be my grounds to remember that the guards could not go far enough? Is there any indication that I could be harassed or invasion of my privacy?